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DOL Issues Guidance on FMLA and Mental Health Conditions

In recognition of Mental Health Awareness Month, on May 25, 2022, the U.S. Department of Labor (DOL) released added resources on workers’ rights to leave for mental health conditions under the federal Family and Medical Leave Act (FMLA).

New DOL Fact Sheet and FAQs

The newly published guidance includes Fact Sheet # 28O: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA’s mental health provisions.

The guidance clarifies that mental health conditions are considered serious health conditions under the FMLA if they need inpatient care or continuing treatment by a health care provider, such as an overnight stay in a treatment center for addiction or continuing treatment by a clinical psychologist. Chronic conditions such as anxiety, depression, or dissociative disorders that cause occasional incapacitated periods and require treatment at least twice a year fall under the “continuing treatment” definition.

The FAQs also provide added examples of situations that qualify for FMLA leave, including treatment sessions for anorexia nervosa and caring for an adult child whose mental health condition is a disability under the Americans with Disabilities Act (ADA).

Brief Summary of the FMLA

The FMLA entitles eligible employees of covered employers to take up to 12 workweeks (up to 26 workweeks for military caregivers) of unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Employers with 50 or more employees are covered by the Act.

An eligible employee may take FMLA leave for their own “serious health condition” or to care for a spouse, child or parent because of their serious health condition. The FMLA also allows employees to take leave for a “qualifying exigency” when a covered family member is on covered active duty in the Armed Forces or has been notified of an impending call or order to covered active duty. 

Next Steps for Employers

Because mental health issues are not always obvious in the same way in which a physical condition may be, employers need to mindful that these issues deserve the same attention, scrutiny, compassion and standard of care as they would provide to employees with conditions that may be more easily observed. To this end, managers/supervisors should be trained on the organization’s FMLA procedures, the ADA, maintaining confidentiality and knowing when an employee’s conduct or statements may trigger leave, even in situations where an employee does not outright ask for leave.

Further, because those coping with mental illness may face barriers to treatment including social stigmas, a lack of available services or financial resources, employers may also wish to consider benefits such as additional paid time off for doctor’s appointments or offering an Employee Assistance Program (EAP). Many EAPs offer free and confidential assessments, short-term counseling, referrals, and follow-up services to employees who have personal and/or work-related problems.

Employers are also encouraged to learn more about the FMLA by visiting “Learn more about the FMLA” and the DOL’s FMLA Compliance Assistance Toolkit.

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